United States District Court, E.D. Kentucky, Southern Division
MEMORANDUM OPINION AND ORDER DISMISSING HABEAS
HORN BOOM, UNITED STATES DISTRICT COURT JUDGE.
Deago Lance Cheshier is a prisoner confined at the Federal
Correctional Institution (“FCI”)-Manchester in
Manchester, Kentucky. Proceeding without an attorney,
Cheshier has filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 challenging his conviction
and sentence. [R. 1; R. 5] This matter is before the Court to
conduct the initial screening required by 28 U.S.C. §
2243. Alexander v. Northern Bureau of Prisons, 419
Fed.Appx. 544, 545 (6th Cir. 2011). A petition will be denied
“if it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to
relief.” Rule 4 of the Rules Governing § 2254
Cases in the United States District Courts (applicable to
§ 2241 petitions pursuant to Rule 1(b)).
2001, Cheshier was convicted by a jury in the United States
District Court for the Southern District of Indiana of two
counts of bank robbery in violation of 18 U.S.C. §
2113(a), four counts of armed bank robbery in violation of 18
U.S.C. § 2113(a) and (d), and four corresponding counts
of use of a firearm during a crime of violence related to the
armed bank robberies in violation of 18 U.S.C. § 924(c).
[R. 1 at pp. 13, 16, 19, 21] See also United States v.
Cheshier, 39 Fed.Appx. 335, 336 (7th Cir. 2002);
United States v. Cheshier, No. 1:01-cr-0001-LJM-TAB
(S.D. Ind.). As summarized by the United States Court
of Appeals for the Seventh Circuit on direct appeal
“[b]ecause the initial conviction under §
924(c)(1) calls for a consecutive 60-month term, and each
additional conviction 300 months extra, Cheshier's total
sentence is 1081 months (960 months for using firearms, on
top of 121 months for the robberies).”
Cheshier, 39 Fed.Appx. at 336. Cheshier's
conviction and sentence were affirmed by the Seventh Circuit.
Cheshier filed a motion to vacate in the Southern District of
Indiana pursuant to 28 U.S.C. § 2255, that motion was
denied as untimely. United States v. Cheshier,
1:03-cv-1649-JDT-TAB (S.D. Ind.). Cheshier filed a notice of
appeal, which the Seventh Circuit construed as an application
for a certificate of appealability and denied. Id.
at R. 19.
2016, the Seventh Circuit granted Cheshier's application
pursuant to 28 U.S.C. § 2244(b)(3), seeking
authorization to file a second or successive motion to vacate
under § 2255 to bring a claim in light of Johnson v.
United States, 135 S.Ct. 2551 (2015), which held that
the residual clause of the Armed Career Criminal Act is
unconstitutionally vague. Cheshier v. United States,
No. 16-2622 (7th Cir.). However, in May 2017, Cheshier filed
a notice with the Southern District of Indiana stating that
“I want to withdraw my Johnson issue, ”
which the Court construed as a notice of voluntary dismissal.
Cheshier v. United States, 1:16-cv-1670-LJM-TAB
(S.D. Ind.) at R. 11, 12.
has now filed a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2241 in this Court. Cheshier's
petition attacks his four § 924(c) convictions, arguing
that: 1) his trial counsel was ineffective for failing to
establish that he never possessed a firearm; and 2) his
§ 2113(a) and (d) convictions are not “crimes of
violence” for purposes of the United States Sentencing
Guidelines. [R. 1 at p. 4-5] He has also filed an addendum to
his petition, in which he raises additional challenges to his
§ 924(c) convictions, first raising a general challenge
to the constitutionality of § 924(c), then claiming that
his defense counsel erroneously failed to object to the trial
court's misapplication of § 924(c)(1)(C). Cheshier
also argues that he is entitled to relief from his §
924(c) convictions under the recently-enacted First Step Act
of 2018. [R. 5]
Court evaluates Cheshier's petition under a more lenient
standard because he is proceeding without an attorney, and
the Court, at this stage of the proceedings, accepts his
factual allegations as true and liberally construes all legal
claims in his favor. See Erickson v. Pardus, 551
U.S. 89, 94 (2007); Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555-56 (2007). However, despite the lenient
construction afforded to Cheshier's petition, Cheshier is
not entitled to the relief he seeks.
initial matter, Cheshier challenges the legality of his
convictions in his habeas petition. While a federal prisoner
may challenge the legality of his convictions and sentence in
a 28 U.S.C. § 2255 motion before the sentencing court,
he generally may not do so in a § 2241 petition. See
United States v. Peterman, 249 F.3d 458, 461 (6th Cir.
2001). A § 2241 petition is typically only a vehicle for
challenges to actions taken by prison officials that affect
the manner in which the prisoner's sentence is being
carried out, such as computing sentence credits or
determining parole eligibility. See Terrell v. United
States, 564 F.3d 442, 447 (6th Cir. 2009). A habeas
corpus petition under 28 U.S.C. § 2241 may not be used
for this purpose because it does not function as an
additional or alternative remedy to the one available under
§ 2255. Hernandez v. Lamanna, 16 Fed.Appx. 317,
320 (6th Cir. 2001).
“savings clause” of 28 U.S.C. § 2255(e)
provides a narrow exception to this rule where § 2255 is
structurally “inadequate or ineffective” to seek
relief. The exception does not apply simply because that
remedy under § 2255 is no longer available, whether
because the prisoner did not file a § 2255 motion, the
time to do so has passed, or the motion was denied on
substantive grounds. Copeland v. Hemingway, 36
Fed.Appx. 793, 795 (6th Cir. 2002). Rather, to properly
invoke the savings clause, the petitioner must be asserting a
claim that he is “actually innocent” of the
underlying offense by showing that, after the
petitioner's conviction became final, the United States
Supreme Court issued a retroactively applicable decision
re-interpreting the substantive terms of the criminal statute
under which he was convicted in a manner that establishes
that his conduct did not violate the statute, Wooten v.
Cauley, 677 F.3d 303, 307-08 (6th Cir. 2012), or
establishing that - as a matter of statutory interpretation -
a prior conviction used to enhance his or her federal
sentence no longer qualifies as a valid predicate offense.
Hill v. Masters, 836 F.3d 591, 599-600 (6th Cir.
2016). Cheshier fails to demonstrate that either of these
circumstances exist in his case.
argues that he is entitled to relief pursuant to the United
States Court of Appeals for the Sixth Circuit's decision
in Camp v. United States, 903 F.3d 594 (6th Cir.
2018), which, according to Cheshier, represents a “new
interpretation of statutory law” establishing that his
four convictions of armed bank robbery in violation of 18
U.S.C. § 2113(a) and (d) are no longer considered
“crimes of violence” for purposes of his four
related convictions of use of a firearm during a crime of
violence in violation of 18 U.S.C. § 924(c). In
Camp, the Sixth Circuit began its analysis by
recognizing that Hobbs Act robbery in violation of 18 U.S.C.
§ 1951(a) is a crime of violence under §
924(c)'s “use-of-force” clause. Id.
at 597 (citing United States v. Gooch, 850 F.3d 285,
292 (6th Cir. 2017), cert. denied, U.S., 137 S.Ct.
2230 (2017)). However, because “crime of
violence” is defined differently for purposes of the
career offender provisions of the United States Sentencing
Guidelines, U.S.S.G. §§ 4B1.1, 4B1.2, the Sixth
Circuit applied the categorical approach and held that Hobbs
Act robbery is not a crime of violence for purposes
of the career offender enhancement provided by the Sentencing
Guidelines. Id. at 604.
Cheshire is not entitled to relief from his four §
924(c) convictions under Camp. First, Cheshire was
convicted of armed bank robbery in violation 18 U.S.C. §
2113(a) and (d), not Hobbs Act robbery. Nor does not Cheshire
allege that his sentence was enhanced because he was
determined to be a career offender under the Sentencing
Guidelines. Rather, Cheshier offers only that, because the
sentencing court mentioned the Sentencing Guidelines more
than once during his sentencing hearing, the Guidelines
definition of “crime of violence” is relevant to
his § 924(c) convictions and related sentences. [R. 1-1
at p. 15-16] However, as Camp itself recognizes, a
“crime of violence” is defined differently for
purposes of a conviction for use of a firearm during a crime
of violence in violation of § 924(c) and for purposes of
determining whether a defendant is subject to the
“career offender” enhancement provided by the
Sentencing Guidelines. Camp, 903 F.3d at 597-98. As
noted by the Seventh Circuit Court of Appeals in its opinion
denying Cheshier's appeal, “[b]ecause the initial
conviction under § 924(c)(1) calls for a consecutive
60-month term, and each additional conviction 300 months
extra, Cheshier's total sentence is 1081 months (960
months for using firearms, on top of 121 months for the
robberies).” Cheshier, 39 Fed.Appx. at 336.
Thus, the sentence imposed with respect to Cheshier's
four § 924(c) convictions challenged in his § 2241
petition were not the result of a career offender
enhancements provided by the Sentencing Guidelines. Rather,
Cheshier's sentence on his § 924(c) convictions was
required by the mandatory minimums provided by §
924(c)(1)(C), which requires a mandatory minimum sentence of
5 years (or 60 months) for the first § 924(c)
conviction, then mandatory minimum sentences of 25 years (or
300 months) for each of Cheshire's three subsequent
convictions, resulting in a total sentence of 960 months for
the use of firearms during his armed bank robberies.
critically, unlike Hobbs Act robbery, armed bank robbery in
violation of § 2113(a) is a crime of violence for
purposes of both § 924(c) and the Sentencing
Guidelines. See United States v. McBride, 826 F.3d
294, 295-96 (6th Cir. 2016) (bank robbery in violation of
§ 2113(a), whether by “force or violence” or
“intimidation, ” involves “the use,
attempted use, or threatened use of physical force, ”
and is a crime of violence for purposes of U.S.S.G. §
4B1.1). See also United States v. Jackson, No.
17-3896, 2019 WL 1122274, at *12 (6th Cir. Mar. 12, 2019).
Indeed, the Sixth Circuit has specifically held that, while
§ 2113(a) is divisible, “a violation involving
force and violence or intimidation constitutes a ‘crime
of violence' under § 924(c)'s force clause - not
its residual clause - under the modified categorical
approach.” See Johnson v. United States, No.
18-6080, 2019 WL 193916, at *2 (6th Cir. Jan. 4, 2019)(citing
United States v. Henry, 722 Fed.Appx. 496, 500 (6th
Cir. 2018); McBride, 826 F.3d 294 (2016)).
Cheshier's underlying criminal case, the jury concluded
that, on four occasions, he committed bank robbery by
threatening bank tellers with a gun. See Cheshier,
39 Fed. App'x. at 336 (in rejecting Cheshier's
argument on appeal that the evidence did not demonstrate that
he possessed a working firearm during each robbery, noting
that “[a] bank robber who informs the teller that he
has a gun, shows something that looks like a gun, and
threatens to do something that is possible only if the item
is a working firearm, has no beef if the jury
concludes that the thing displayed and talked about
was a gun.”) (citations omitted) (emphasis in
original). Thus, there is no question that his four
convictions for armed bank robbery in violation of §
2113(a) and (d) each constitute a “crime of
violence” for purposes of his four corresponding §
See Johnson, 2019 WL 193916, at *2 (the defendant
“failed to make a substantial showing that his
convictions for the armed bank robberies…, each of
which involved brandishing a firearm, were not ‘based
on elements of the bank robbery statute that clearly
criminalize the use of force,' see McBride, 826
F.3d at 295…Therefore, each of those convictions
qualify as a crime of violence under § 924(c)'s
force clause.”). As the Sixth Circuit explained in
United States v. Henry, 722 Fed.Appx. 496, 500 (6th
Cir.), cert. denied, 139 S.Ct. 70, 202 L.Ed.2d 47
(2018): “All three of the firearm convictions grew out
of federal bank robbery convictions under 18 U.S.C. §
2113(a). A necessary element of bank robbery is the use of
“force and violence” or
“intimidation.” 18 U.S.C. § 2113(a). And
intimidation is all it takes to satisfy §
924(c)(3)(A)'s elements clause, which defines crimes
involving the ‘threatened use ...